Opinion
Submitted May 7, 1999
June 21, 1999
In an action to recover damages for medical malpractice, the defendant Hady G. Oghia appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Levine, J.), dated April 13, 1998, as only conditionally granted his motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against him.
Dwyer Taglia, New York, N.Y. (Peter R. Taglia of counsel), for appellant.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court ( see, Herrera v. City of New York, 238 A.D.2d 475). Here, the Supreme Court did not improvidently exercise its discretion in only conditionally granting the appellant's motion pursuant to CPLR 3126.